LD Munich, 5 February 2024, decision UPC_CFI_498/2023

Rule 275 RoP does not permit the court to designate someone as person authorised to accept service, if that person has not notified the Registry or the claimant to be willing to accept service of the statement of claim on behalf of the defendant at an electronic address (Rule 271.1 (c) RoP). If this person previously refused to accept service of the statement of claim towards the claimant, the UPC is not required to ask this person again whether service will be accepted.

In contrast to German law (§ 185 no. 3 ZPO), Rule 275.1 RoP requires an actual (“real”) but unsuccessful attempt of service before service by an alternative method or at an alternative place may be ordered (cf. LD Mannheim, decision on 8 December 2023, CFI_219/2023). It is not sufficient that service presumptively is not possible because of known deficiencies of service according to the Hague Convention in certain countries, e.g., China and Hong Kong.

The potential breach of the defendant’s FRAND obligations has no bearing on the question of whether service could not be effected. The assessment of the defendant’s conduct as a breach of FRAND obligations is only relevant with respect to the FRAND objection and not relevant in the context of Rule 275 RoP.